April 2009 update

Legislation

A consolidated version of the Parole Board rules (as recently amended) is available on Wikimentalhealth. See Parole Board Rules 2004

New secondary legislation. Parole Board (Amendment) Rules 2009 — These Rules amend the Parole Board Rules 2004. The amendments have been incorporated into the text on the Parole Board Rules 2004 page (using strikethrough and square brackets). In force 1/4/09. The amendments do not apply in relation to any hearing which begins prior to 1/4/09 (which includes hearings begun prior to 1/4/09 and adjourned to 1/4/09 or later). Note that the 2004 rules have been replaced by the Parole Board Rules 2011.

COP Practice Direction for Deprivation of Liberty Applications published. See Court of Protection Rules 2007

Various provisions came into force on 1/4/09: the deprivation of liberty safeguards, and transitional provisions; amendments to Court of Protection Rules 2007; amendments to Court of Protection Fees Order 2007; amendments to Public Guardian (Fees, etc) Regulations 2007; amendments to Community Legal Service (Financial) Regulations 2000; the creation of the Care Quality Commission, and transfer to it of MHAC's functions; amendments to NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000; amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008; Independent Mental Health Advocate provisions. See March 2009 update for details

Website/other

Responsible clinicians at MSUs: if you have been told that you require MoJ permission to grant hospital ground leave beyond the confines of your MSU for all your restricted patients then you have been misled. See Power to specify hospital units. Permission is only required if your particular hospital unit is specified in the hospital order, transfer direction, or equivalent.

Text of Mental Health Act 1983 checked and fully updated. See Mental Health Act 1983. The most recent amendments were made by the Health and Social Care Act 2008 and came into force on 1/4/09 in relation to the Care Quality Commission

The website currently has 482 categorised cases, plus 66 cases with Bailii links only.

See April 2009 chronology for changes to the website in date order

Caselaw

2009 cases

Some of these cases have not yet been summarised.

R v Wood (No 2) [2009] EWCA Crim 651 — The fact that a defendant was convicted of manslaughter on the grounds of diminished responsibility did not preclude a sentence of imprisonment for life. In assessing the seriousness of such an offence with a view to fixing a minimum term, the court could take into account the guidance in Sch 21 of the Criminal Justice Act 2003, subject to the specific element of reduced culpability consequent on diminished responsibility. [ICLR]§
Kaprykowski v Poland 23052/05 [2009] ECHR 198 — Detention without adequate medical treatment and assistance constituted inhuman and degrading treatment, amounting to a violation of Article 3; compensation of €3000 awarded.§
R (Scott) v London Borough of Hackney [2009] EWCA Civ 217 — The fact that a judicial review claimant is legally aided and his solicitor would therefore benefit from an inter partes costs order is not relevant to the decision as to whether to make a costs order.§
M v Murray (Mental Health Officer) [2009] ScotSC 8 — The appellant patient argued that the mental health officer's application to the Mental Health Tribunal for Scotland was misconceived because the second medical report which accompanied the application did not meet the requirements of the Mental Health (Care and Treatment) (Scotland) Act 2003; taken as a whole and in the circumstances (that the application is made in the interests of the patient and the Tribunal also hear oral evidence) the report did meet the requirements.§
Re BS [2009] NIFam 5 — A medical examination of BS in the context of an application for a Controller to be appointed in respect of her affairs would not breach Article 8 and should take place.§
R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWHC 661 (Admin) — Coroners' inquests - deaths in custody - Article 2§
Jain v Trent Strategic Health Authority [2009] UKHL 4 — Unsuccessful negligence claim relating to the cancellation of nursing home registration.§
Magowan, Re Judicial Review [2009] NIQB 6 — Unsuccessful judicial review of failure of social services to make arrangements which would have allowed discharge from hospital.§

Old cases summarised

Cases summarised this month. In alphabetic order.

Antoine v UK 62960/00 [2003] ECHR 709 — The claimant was detained under a hospital order, it having been found that he was unfit to plead but had done the act. His complaint was based on Article 6 (unable to participate effectively, no trial within reasonable time, breach of presumption of innocence), Article 3 (living under threat of further prosecution), and Article 5 (arbitrary detention). Application declared inadmissible.§
Cathleen Williams v Anthony Williams [2001] EWCA Civ 197 — The twelve-week requirement under s35 Mental Health Act does not apply to s48(1) Family Law Act 1996 (both sections relate to remand for medical examination and report).§
Clunis v UK 45049/98 [1998] ECHR 116 — The failures in providing care prior to the claimant's offence did not breach Article 8 as there was no inevitable link between the failures and the offence; although he lost his negligence action against the local authority (partly on the basis of ex turpi causa) there had been no breach of Article 6 in the procedure.§
Cornelius v de Taranto [2000] EWHC 561 (QB) — Unauthorised transmission of medico-legal report; unsuccessful defamation claim; damages awarded for injury to feelings caused by breach of confidence.§
Cornelius v De Taranto [2001] EWCA Civ 1511 — Unsuccessful appeal on liability (Original decision: Unauthorised transmission of medico-legal report; unsuccessful defamation claim; damages awarded for injury to feelings caused by breach of confidence).§
Cotterham v UK [1999] ECHR 185 — The 10-month delay between the MHRT application and the hearing at first sight appeared to be a breach of Article 5(4); however, in the circumstances, there was no lack of diligence on the part of the judicial authorities: the delays were due to postponements for an independent report which arrived late and was served later still, and for the solicitor to be available.§
Croke v Ireland 33267/96 [2000] ECHR 680 — The applicant's case under Article 5 (about the absence of an independent and automatic review prior to or immediately after his initial detention in a psychiatric institution and about the absence of a periodic, independent and automatic review of his detention thereafter) was struck out of the list on the basis of a friendly settlement based on the Southern Irish government's intention to enact the Mental Health Bill 1999 to replace the Mental Treatment Act 1945.§
Doreen Trew v Chase Farm Hospital [2000] EWHC 645 (Admin) — A deferred conditional discharge had proved impossible to implement, no psychiatrist being willing to supervise the patient; on a subsequent Tribunal application the medical evidence was that an absolute discharge would be appropriate, but the panel adjourned the hearing; in the circumstances habeas corpus was not the appropriate remedy as the failure of the Tribunal to make the decision (as it should have) did not make the detention unlawful.§
Drew v UK 35679/03 [2006] ECHR 1172 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.§
FC v UK (1999) 37344/97 [1999] ECHR 184 — The applicant complained under Article 8 of the Convention that her adoptive father (whom she claims sexually abused her) automatically became her nearest relative under s26, that he consequently had access to personal information about her (including her treatment and whereabouts) and that she was not entitled to apply to have someone else act as her nearest relative; the case was struck out of the list by way of a friendly settlement on the basis that the government would change the law.§
Francis v UK 3346/02 [2003] ECHR 707 — The claimant's mentally-ill son had discharged himself from hospital and committed suicide; her Article 2 and 6 complaints were dismissed.§
G v Official Solicitor [2006] EWCA Civ 816 — When considering a statutory will, the function of the court is to do for the patient what the patient would fairly do for herself, if she could and acting with the benefit of advice from a competent solicitor; on the facts, including the family disputes, she would have appointed the independent receiver as executor of her estate. [Caution.]§
Gajcsi v Hungary 34503/03 [2006] ECHR 822 — The continuation of the claimant's detention for three months was not in accordance with a procedure prescribed by law, in that dangerous conduct had not been considered by the reviewing court; there had therefore been a breach of Article 5(1) and compensation of €7350 was awarded§
Gorshkov v Ukraine 67531/01 [2004] ECHR 726 — The claimants complaints, relating to his detention in hospital, under Article 2, 3 and 5(1) were manifestly unfounded, but his complaint under Article 5(4) was admissible§
Grey v UK 34377/02 [2002] ECHR 854 — A Tribunal granted an absolute discharge because the claimant suffered from no mental disorder, but on judicial review this was quashed because they had not first considered conditional discharge; a subsequent Tribunal reclassified him and upheld continued detention; his complaint under Article 5(1)(e) was rejected (no duty immediately and unconditionally to release into the community), as were complaints under Article 5(4) (no undue delay) and Article 6 (no right to appeal).§
IH v UK 17111/04 [2005] ECHR 934 — The claimant was granted a deferred conditional discharge but subsequently not released as no supervising psychiatrist could be found; the House of Lords found that Article 5(4) had been breached as the Tribunal could not revisit their decision (as the law was then understood). The claimant's Article 5(1)(e) complaint was rejected (on the facts, the alternative to conditional discharge was continued detention rather than absolute discharge), as were his complaints under Article 5(4) (no longer a victim as domestic courts had acknowledged breach and afforded appropriate redress) and Article 5(5) (no longer a victim, no absolute right to compensation).§
Kaprykowski v Poland 23052/05 [2009] ECHR 198 — Detention without adequate medical treatment and assistance constituted inhuman and degrading treatment, amounting to a violation of Article 3; compensation of €3000 awarded.§
Kay v UK 17821/91 [1993] ECHR 61 — The applicant's complaints under Article 5(1) (recall to hospital without medical evidence) and Article 5(4) (delay in Tribunal proceedings) were admissible.§
Kay v UK 17821/91 [1994] ECHR 51 — (1) The recall to hospital without up-to-date objective medical expertise showing that the applicant suffered from a true mental disorder, or that his previous psychopathic disorder persisted - in the absence of any emergency - violated Article 5(1); (2) The subsequent MHRT proceedings were inherently too slow, which breached Article 5(4): the first hearing date offered was five months after referral, and final determination took just over two years.§
Keenan v UK 27229/95 [2001] ECHR 242 — The applicant's son had committed suicide while serving a prison sentence. Her Article 2 complaint was rejected (the authorities responded in a reasonable way to his conduct, placing him in hospital care and under watch when he evinced suicidal tendencies) but her Article 3 complaint was accepted (lack of effective monitoring and informed psychiatric input into his assessment and treatment, together with the imposition of punishments including seven days' segregation).§
Kepenerov v Bulgaria 39269/98 [2003] ECHR 425 — The claimant was detained for a month by a prosecutor who had no legal power to do so, had not sought a prior medical assessment, and had not specified the length of detention (furthermore, there was no legal means to challenge the detention); there therefore had been a violation of Article 5(1)(e) and compensation of €2000 was awarded.§
Khudobin v Russia 59696/00 [2006] ECHR 898 — Lack of medical treatment while detained violated Article 3; lack of relevant and sufficient reasons for pre-trial detention violated Article 5(3); undue delays in considering two separate applications for release violated Article 5(4); appeal court's failure to consider refusal of release breached Article 5(4); court's failure to consider entrapment defence violated Article 6(1); damages of €12,000 awarded§
Kinsey v North Mersey Community NHS Trust [1999] EWHC Admin 577 — Click on link to view page.§
Lebrooy v LB of Hammersmith and Fulham [2006] EWHC 1976 (QB) — Claims struck out for having no prospect of success; in any event, no permission had been obtained under s139 so the proceedings were a nullity.§
Matter v Slovakia 31534/96 [1999] ECHR 38 — Proceedings relating to capacity are covered by Art 6 ECHR; in assessing whether the proceedings are completed within a reasonable time, account has to be taken of any complexity arising from the need for expert evidence and any conduct by the patient, but special diligence is required from the court in light of the importance of the question. A forced medical examination, which is an interference for the purposes of Art 8(1), could be a proportionate method of protecting a patient’s rights as part of the resolution of capacity proceedings and so justified for the purposes of Art 8(2) ECHR. [MHLR.]§
Morley v UK 16084/03 [2002] ECHR 853 — The applicant had been transferred from hospital back to prison. He argued that his Article 5(4) right to review of his detention had been breached as the transfer had been ordered by the executive rather than a court, and asserted that he was still of unsound mind within Article 5(1)(e). This complaint was rejected (judicial review is sufficient) and his Article 8 complaint also failed.§
Musial v Poland 24557/94 [1999] ECHR 15 — Requesting a second opinion did not amount to a waiver of the right to a speedy hearing; the court’s agreement to request a second opinion did not absolve it of the duty to ensure speediness (including using powers such as the fining of witnesses); complexity of a medical file was relevant to the issue of speediness; reliance on an out-of-date medical report could breach Art 5. [MHLR.]§
Nakach v The Netherlands 5379/02 [2005] ECHR 445 — The practice of the Arnhem Court of Appeal, which had upheld the applicant's continued detention, not to keep official records of hearings (on the basis that no appeal could be made from that court) breached domestic law and therefore breached Article 5(1)§
Naumenko v Ukraine 42023/98 [2004] ECHR 68 — Enforced medical treatment of prisoner did not violate Article 3.§
NHS Trust v T [2004] EWHC 1279 (Fam) — The patient lacked capacity, based on medical opinion and the content of her advance directive refusing treatment; interim declaration made that blood transfusion in emergency would be in patient's best interests.§
Nowika v Poland 30218/96 [2002] ECHR 795 — The detention for 83 days of the applicant under Article 5(1)(b) (the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law) violated Article 5(1) as it was for longer than necessary for the fulfilment of the obligation to submit to a psychiatric examination; the restriction on visits by her family to one visit per month violated Article 8; compensation of €10,000 was awarded§
Panteleyenko v Ukraine 11901/02 [2006] ECHR 667 — A search of the applicant's office, and the disclosure of confidential psychiatric information, was not in accordance with domestic law and therefore violated Article 8; the domestic authorities' refusal to pay compensation on the ground that criminal proceedings had been discontinued on "non-exonerating grounds" contravened the presumption of innocence and violated Article 6(2).§
Phillips v UK 64509/01 [2000] ECHR 702 — The Tribunal's conditional discharge decision was delayed, initially to find accommodation, then because no psychiatric supervisor could be found. The applicant argued that his detention from 25 February 1999 (being six months after the Tribunal decision) and 4 August 2000 (when he was released) was in violation of Article 5(1)(e) because he was no longer suffering from mental illness warranting detention for treatment. The government settled the case by paying £5,500 plus costs.§
R (Abu-Rideh) v MHRT [2004] EWHC 1999 (Admin) — The claimant was a foreign national detained under the Immigration Act 1971 as a suspected terrorist, then transferred to hospital under s48/49 MHA 1983; the MHRT proceeded on the basis that the only realistic alternative was return to prison, where he would relapse; he argued that the MHRT ought to have considered the question of discharge by reference to discharge into the community, even though this was an impossibility; the Tribunal had been correct in their approach.§
R (AX London) v Central London County Court [1999] EWCA Civ 988 — The county court can, on an ex parte application, make an interim displacement order under s29; it is lawful to detain a patient under s3 on the basis of it, although unless there are cogent reasons it is preferable to wait until the final order; even if the order had been declared invalid, the decision to admit the patient would still be valid.§
R (Brady) v Dr Collins [2000] EWHC 639 (Admin) — (1) The hunger strike was a manifestation or symptom of the patient's personality disorder, and the commencement of force-feeding was justified under s63 as medical treatment for mental disorder; even if s63 did not apply, the patient lacked capacity and the doctors had acted in what they lawfully believed was his best interests; (2) The appropriate test when considering challenges to compulsory treatment under s63 was the "super-Wednesbury" test [caution: the law has since changed]§
R (Brown) v North East Thames MHRT [2000] EWHC 640 (Admin) — It was not in the public interest interest to pursue the judicial review of a Tribunal decision to discharge conditionally rather than absolutely: there had subsequently been a recall and a further well-reasoned conditional discharge; even if the applicant won he would be granted no relief.§
R (C) v MHRT London South and South West Region [2000] EWHC 637 (Admin) — The listing of s3 hearings no later than 8 weeks after application did not breach Article 5(4). The RMO has a continuing duty to consider whether the conditions remain satisfied.§
R (C) v South London and Maudsley NHS Trust [2001] EWHC Admin 1025 — Identification of nearest relative in s11(4) is a subjective test - "who appears to him to be the nearest relative" - and the court will not interfere unless the social worker failed to apply the test in section 26 or acted with bad faith, or in some way reached a conclusion that was plainly wrong. Permission to apply for judicial review refused.§
R (Cooper) v Parole Board [2007] EWHC 1292 (Admin) — Target time of 55 days from referral to hearing in recall cases breached Article 5(4); as did the refusal to expedite case on on basis of prisoner's mental state.§
R (DB) v SSHD [2006] EWHC 659 (Admin) — Detention of "pre-operative male-to-female transsexual" on male ward did not violate Article 3 or 8§
R (Donaldson) v SSHD [2006] EWHC 1107 (Admin) — The Home Office decision to cease considering patients for technical lifer status (unless in exceptional circumstances) was lawful: (1) It was too early to say whether the Home Office's acceptance that there could be "exceptional cases" was meaningless and that the policy was therefore an unlawful fetter on the discretion as to route to discharge; (2) There was no substantive legitimate expectation that the policy would not be changed, that it would be kept open for them, or a legitimate expectation that more would be done in relation to the notification about the change in policy§
R (E) v Ashworth Hospital Authority [2001] EWHC Admin 1089 — The restrictions placed on the male claimant's freedom to dress as, and to assume the appearance of, a woman were lawful.§
R (Epsom and St Helier NHS Trust) v MHRT [2001] EWHC Admin 101 — While the matter has to be looked at in the round, including the prospect of future in-patient treatment, there will come a time when, even though it is certain that treatment will be required at some stage in the future, the timing of that treatment is so uncertain that it is no longer "appropriate" for the patient to continue to be liable to detention. The application for judicial review against the MHRT's decision to discharge from s3 failed.§
R (F) v Oxfordshire Mental Healthcare NHS Trust (2001) EWHC 535 Admin — Click on link to view page.§
R (Fitzpatrick) v MHRT (2005) CO/2778/2004 — Delay between deferred conditional discharge and eventual absolute discharge; Tribunal conceded judicial review against conditional discharge decision made without hearing, but disputed damages; damages of £4000 awarded by judge (frustration and distress, probability of earlier discharge).§
R (Gilkes) v SSHD [1999] EWHC Admin 47 — One of the two medical reports was too out-of-date to be reasonably relied upon for a s47 transfer to hospital; a transfer at the end of a prison sentence was not inherently unlawful; based on subsequent material from the same doctor, no relief would be granted as if the Secretary of State had insisted on an up-to-date report he would have made a transfer direction anyway.§
R (H) v MHRT [2000] EWHC 646 (Admin) — The MHRT should not have informed the nearest relative of restricted patient [or, more correctly, the person who would have been the nearest relative had the patient not been restricted] of the forthcoming hearing, because the definition of "nearest relative" in the Tribunal rules excluded restricted patients; the injunction preventing the Tribunal from disclosing its final decision would continue.§
R (K) v Camden and Islington Health Authority [2000] EWHC Admin 353 — The deferred conditional discharge could not be implemented because psychiatrist willing to supervise could be found; the duty on the health authority was not absolute but rather to take all reasonable steps (which they had); the psychiatrists had been entitled to exercise their professional judgment as they had.§
R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240 — Following a deferred conditional discharge, the duty under s117 was not absolute but rather to exercise reasonable endeavours (in this case, to find a supervising psychiatrist); continued detention despite these reasonable endeavours would not breach Article 5.§
R (ML) v Secretary Of State For Health [2000] EWHC Admin 397 — The Visits by Children to Ashworth, Broadmoor and Rampton Hospitals Directions 1999 were lawful and did not violate Article 8.§
R (Munjaz) v Ashworth Special Hospital Trust [2000] EWHC 644 (Admin) — The Ashworth seclusion policy, which departed from the Code of Practice, was unlawful. [Caution]§
R (N) v Ashworth Special Hospital Authority [2001] EWHC Admin 339 — Unsuccessful challenge to Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000 which introduced a discretionary power on special hospitals to record and subsequently to listen to a random ten per cent of the outgoing and incoming telephone calls of patients at the hospitals.§
R (Scott) v London Borough of Hackney [2009] EWCA Civ 217 — The fact that a judicial review claimant is legally aided and his solicitor would therefore benefit from an inter partes costs order is not relevant to the decision as to whether to make a costs order.§
R (SSHD) v MHRT, re MW [2000] EWHC 638 (Admin) — S78 allows Tribunal rules to be made to give the Tribunal such powers as are necessary for the purposes of the exercise of their statutory functions; the old MHRT rules were made under this section; the MHA does not give the Tribunal any power to make recommendations in the case of a restricted patient; therefore, the Tribunal could not lawfully adjourn for information relating solely to the making of an extra-statutory recommendation.§
R (SSHD) v MHRT, re PH [2002] EWHC 1128 (Admin) — Condition of discharge not to leave without escort not unlawful on the facts.
R (Stennett) v Manchester City Council [2002] UKHL 34 — S117 is not a gateway section; it contains no charging provision; therefore, no charge should be made for after-care under that section, including for caring residential accommodation.§
R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440 — Where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. The present system complied with Article 2. Inquest verdict quashed and new inquest ordered.§
R v LB Richmond, ex p Watson [1999] EWHC Admin 749 — Claimants' accommodation must be provided under section 117(2) and not under s21 National Assistance Act 1948; s117 not a gateway section; it follows that the Respondents are not entitled to charge the Applicants for their accommodation. §
R v Bainton [2005] EWCA Crim 3572 — Two-year sentence quashed and substituted with same sentence suspended for two years: there were exception circumstances as the combination of physical, emotional and sexual abuse had reduced the appellant to a condition where it was difficult to resist the coercion of her husband.§
R v Belford (Moses Edward) [2000] EWCA Crim 3536 — Sentence of 12 months' imprisonment quashed and substituted with 6-month sentence suspended for 18 months (schizophrenia being an exceptional circumstance).§
R v Borkan [2004] EWCA Crim 1642 — The judge was right not to adjourn for a psychiatric report on fitness to plead and stand trial, as he had two reports already stating that the defendant was not unfit; a jury could not determine fitness to plead or stand trial without supporting medical evidence, and on the facts there was none; appeal dismissed.§
R v Drew [2001] EWCA Crim 2861 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.§
R v Drew [2003] UKHL 25 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.§
R v Fairley (Terry James) [2003] EWCA Crim 1625 — Having found the defendant unfit to plead, the court had no power to impose a hospital order or restriction order; the proper course would have been to consider an admission order with restrictions; the orders were quashed and the case remitted to the Crown Court. [NB the law has since changed.]§
R v Grant [2001] EWCA Crim 2611 — Having been charged with murder and found unfit to be tried, a defendant cannot rely on lack of intent and/or provocation during the exercise under s4A Criminal Procedure (Insanity) Act 1964 (finding that the defendant did the act or made the omission) as only the actus reus needs to be proved; appeal against admission order and restriction order under s5 refused.§
R v House [2007] EWCA Crim 2559 — (1) The judge was plainly right to pass the sentence of two concurrent life sentences with a s45A order; (2) a minimum term should be specified unless the punitive and retributive element required detention for life and, on the facts, a 9-year minimum term would be set.§
R v Khelifi [2006] EWCA Crim 770 — (1) Although medical evidence supported a hospital order, the judge had correctly exercised his discretion instead to impose a prison sentence; there is no presumption that a hospital order will be made in these circumstances; (2) five-year sentence reduced to three and a half years.§
R v Nafei [2004] EWCA Crim 3238 — Appeal against 12-year prison sentence for importation of drugs, in circumstances where the medical evidence supported a hospital order, was refused: the judge had properly exercised his discretion, particularly since there was no causal connection between the mental illness and the offending; the 12-year term was not excessive.§
R v Preston [2003] EWCA Crim 2086 — The hospital order should not have been made as the court had no up-to-date medical evidence; the appeal was adjourned for medical reports to be obtained.§
R v Rosso (Rosario) [2003] EWCA Crim 3242 — (1) The police had been entitled to force entry into a hotel room in order to detain the defendant pursuant to an application under s2; no warrant under s135 was required as they had the owners' permission and the defendant had no right to deny them entry; therefore the appeal against conviction was refused; (2) the appeal against the restriction order was also refused.§
R v Tandy [1987] EWCA Crim 5 — Point of law: whether, for a craving for drink or drugs in itself to produce an abnormality of mind within the meaning of s2(1) of the Homicide Act 1957, the craving must be such as to render the accused's use of drink or drugs involuntary or whether it is sufficient for the defence to prove that the craving was such as to make it more difficult, than for an ordinary individual, for the accused to resist the impulse to consume alcohol or use drugs?§
R v Wood (No 1) [2008] EWCA Crim 1305 — In addressing a plea of diminished responsibility in the context of alcohol dependency syndrome, the jury must consider whether it had been established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness, and, if that were established, whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. [ICLR]§
Re BS [2009] NIFam 5 — A medical examination of BS in the context of an application for a Controller to be appointed in respect of her affairs would not breach Article 8 and should take place.§
Romanov v Russia 63993/00 [2005] ECHR 933 — (1) Violation of Article 3: The applicant's conditions of detention, in particular the severe overcrowding and its detrimental effect on the applicant's well being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment. (2) Violation of Article 5(3): the length of the proceedings (and detention on remand) was attributable neither to the complexity of the case nor to the conduct of the applicant but to the lack of diligence and expedition on the part of court. (3) Violation of Article 6(1) and (3)(c): In view of what was at stake for the applicant the District Court could not, if the trial was to be fair, determine his case without a direct assessment of the applicant's evidence, and the presence of the applicant's lawyer could not compensate for his absence.§
Shenkel v The Netherlands 62015/00 [2005] ECHR 935 — (1) Violation of Article 5(1): Failure, in breach of domestic law, to draw up an official record of Court of Appeal hearing which rejected the appeal against continued detention. (2) Violation of Article 5(4): Delay of 17 months before determination of Court of Appeal case. §
Shulepova v Russia 34449/03 [2008] ECHR 1666 — (1) Violation of Article 5(4): Applicant not detained in accordance with a procedure prescribed by domestic law. (2) Violation of Article 6(1): By appointing the hospital's employees as psychiatric experts, the domestic courts placed the applicant at a substantial disadvantage, in breach of the principle of equality of arms.§
Tam v Slovakia 50213/99 [2004] ECHR 282 — (1) Violation of Article 5(1): Detention not in accordance with procedure prescribed by domestic law. (2) Violation of Article 5(4): The review procedure failed to provide adequate guarantees to the applicant; in particular, the court failed to appoint a guardian as required by domestic law, and did not hear the applicant or the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified.§
Varbanov v Bulgaria 31365/96 [2000] ECHR 457 — (1) Violation of Article 5(1): Deprivation of liberty was not justified under Art 5(1)(e) and had no basis in domestic law which, moreover, did not provide the required protection against arbitrariness as it did not require the seeking of a medical opinion. (2) Violation Article 5(3): The applicant could only appeal to prosecutors and so was deprived of his right to have the lawfulness of his detention reviewed by a court.§
Wainwright v UK 12350/04 [2006] ECHR 807 — Strip searches of the applicants breached Article 8 due to their manner, but did not reach the minimum level of severity prohibited by Article 3.§
Wall v Sweden 41403/98 [1997] ECHR 201 — The detention of an alcoholic under Article 5(1)(e) did not breach Article 5(1): the authorities continuously considered less severe measures, they strictly scrutinised the necessity for subjecting the applicant to compulsory care, and the total length of the applicant’s detention was not extended beyond a period reasonable to the aim pursued by domestic law, namely to motivate the applicant in such a way that he become capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse.§
Warren v UK 36982/97 [1999] ECHR 186 — Detention under the MHA following an order made by a criminal court should be considered under Art 5(1)(e) ECHR. [MHLR.]§
Wilkinson v UK 14659/02 [2006] ECHR 1171 — The applicant's complaints were all declared inadmissible. He had complained that: (1) medical treatment against his will was a breach of the negative obligations under Articles 3 and 8; (2) the authorities failed in their positive obligation under Articles 3 and 8 to provide suitable safeguards against the imposition of treatment that would violate his rights, in particular that the authorities should have sought approval from a court before imposing treatment and that he should have been able to bring a challenge against the treatment, before it took place, in a court which would have been able to provide a suitable level of review; (3) the inability to have a determination of his ‘civil right’ to autonomy in a court that would have provided a review on the merits was a violation of Article 6; (4) the lack of effective remedy was a breach of Article 13; (5) discrimination on the basis of his status as a detained patient was a breach of Article 14.§
X v UK 7215/75 [1981] ECHR 6 — (1) Under Article 5(1), the recall to hospital without the usual Winterwerp guarantees was lawful as it was an emergency; the further detention followed examination by the RMO so was also lawful; (2) Habeas corpus proceedings were inadequate for Article 5(4) purposes; the other legal machinery did not remedy this breach, in particular because the MHRT could not order discharge of restricted patients.§
X v UK 7215/75 [1982] ECHR 8 — (1) No compensation awarded under Article 40; (2) Note taken of agreement relating to costs; (3) Note taken of proposed law reform (MHRT to be able to discharge restricted patients, and legal aid to cover representation).§

April 2009 update

Contents

Legislation

Other documents

MCA/DOLS

MHA

Various

Website/other

Caselaw

2009 cases

Old cases summarised